State of New South Wales v KW (preliminary) [2023] NSWSC 397

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v KW (preliminary) [2023] NSWSC 397 Hearing dates: 18 April 2023 Date of orders: 18 April 2023 Decision date: 18 April 2023 Jurisdiction: Common Law Before: Fagan J Decision: Orders made for interim supervision and for appointment of experts to assess the defendant Catchwords: HIGH RISK OFFENDER – sexual offender – interim supervision order – appointment of experts to assess the defendant Legislation Cited: Crimes (High Risk Offenders) Act 2006. Drug Misuse and Trafficking Act 1985 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Category: Principal judgment Parties: State of New South Wales (plaintiff) KW (defendant) Representation: Counsel: K Ng (plaintiff) A Bhasin (defendant)

Solicitors: Crown Solicitors Office (plaintiff) Legal Aid NSW (defendant) File Number(s): 2023/80322 Publication restriction: No

JUDGMENT 1. Before the Court is an application by the plaintiff for an interim supervision order against the defendant, pursuant to s 10A of the Crimes (High Risk Offenders) Act, 2006, and for orders for the appointment of specialist expert witnesses pursuant to s 7 (4) of that Act. 2. The summons was filed on 9 March, 2023. The defendant is presently serving a sentence of imprisonment that was imposed on 14 December 2018. It is an aggregate term of 4 years and 6 months with a non-parole period of 2 years and 6 months. The sentence commenced on 29 October 2018. The non-parole period was completed on 28 April 2021. The defendant has not been granted parole and the head sentence will expire on 28 April 2023. 3. The summons was filed within the period provided for in the Act. The sentence that the applicant is presently serving and the offence for which it was imposed, are such as to satisfy the requirements of s 5B (a), (b) and (c) of the Act. The only remaining question in order to determine whether the interim supervision order and the orders for examination by experts should be made under ss 7 and 10A is the question of whether, upon the final hearing of the summons, if the matters appearing in the materials now provided to the Court should be accepted and should prove the facts to which they refer, would the Court be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. That proposition has been clearly established by the material tendered and it is not in dispute by the defendant, who is represented by counsel. 4. The defendant is a man now aged 36 years. He has been assessed to have a mild intellectual disability. His cognitive capacity is within the lowest 2 percent of the population, calibrated relevant to his age. In addition to his cognitive limitations the defendant has been diagnosed with polysubstance abuse disorder and at times he has been diagnosed with anxiety, depression and a borderline personality disorder. 5. The evidence before the Court shows, prima facie, that the defendant had an extremely turbulent and adverse upbringing, in a family in which there was significant parental abuse of himself, both physical and sexual. It was a family in which there was also extensive consumption of alcohol by the defendant's father and use of illicit substances, principally cannabis, by his mother. Against that background, the defendant matured into a person with very little capacity for self-regulation or control of his urges and volatile moods. 6. Between 2004 and 2016 the defendant was subject to apprehended domestic violence orders taken out, first, by his mother, father and younger sister and, later, by an adult female partner with whom he was in a relationship for some years from March 2010. Also during that period, 2004 to 2016, the defendant was convicted of a number of offences that stemmed from his inability to regulate his own behaviour, such as using uninsured vehicles, using a carriage services to menace and intimidate. A number of breaches of bail were recorded against him during the course of his prosecution for these offences. 7. In February 2013, at the age of 26, the defendant committed an indecent assault upon his stepdaughter, an 11 year old girl who was the daughter of his then partner. That offence was not prosecuted until 2017. He was charged with that offence on 1 May 2017 and was sentenced in the following year to a term of imprisonment of 18 months with a non-parole period of 9 months. 8. The index offences for which he is currently in custody and to which the present application is referable were committed in April 2018 whilst the defendant was on bail for the indecent assault against his stepdaughter. The index offences involved the defendant establishing a relationship over the Internet with a girl who was 14 years old and nearly 15. He met with this girl on two separate occasions and on each occasion had full penetrative sexual intercourse with her and committed other sexual acts such as digital penetration. The evidence showed, and the defendant did not dispute, that he was aware that she was under the age of 16. He expressed to people who assessed him in relation to that offending that he did it knowing that it was wrong and out of anger at having been prosecuted, commencing in May 2017, for the indecent assault that had occurred some four years earlier against his 11-year-old stepdaughter. 9. I have already referred to the aggregate term of imprisonment that was imposed for the index offences. I have taken into account risk assessment reports and risk management reports that have been prepared by psychology professionals of Corrective Services. I am satisfied that if this material is made good on final hearing, the Court would readily conclude that the defendant would pose an unacceptable risk of repeated offending if not subject to supervision in the community. I am satisfied that on this material, if accepted, that conclusion would be reached to a degree of comfortable satisfaction. Accordingly, it is appropriate to make orders in terms of paragraphs 1 and 2 of the summons and those orders will be entered. 10. The interim supervision order, that will take effect pursuant to those orders, is to be subject to conditions. The State has proposed 62 conditions, many of which are opposed by the defendant. The Court has received detailed written submissions explaining the basis of opposition and has been provided with a helpful table that identifies the points of difference between the State and the defendant.